Week 1 - Codification and Natural law

Codification (3 elements)

1. Provisions committed to writing

2. Issued by body with authority

3. Exclusivity = no other sources of law to be used because of governments authority

a. Formal Exclusivity = only 1 book and the only text valid

b. Material Exclusivity = there is solution to every case

Codification definition

Codification is the process of writing laws into official, organized system that is granted exclusive validity

Codification examples

• Law codes of justinian = collection of leges (imperial laws)

• Napoleon’s Code (1804)

Napoleon’s Code 1804

• designed to replace the chaotic patchwork of feudal and royal laws with a single, rational, and secular system

• followed a pattern similar to the Roman Institutes of Justinian

What did Napoleon’s Code consist of?

• 3 books

• book 1 = civil status and family law

• book 2 = owneship of land

• book 3 = inheritance, contracts, donations

Jeremy Bentham

• englightenment era

• supported codification because it made laws clear and concise

Pros of codification

• creates legal certainty

• enforces principle of legality

• intellectual economy

Jean-Jacques Rosseau

• everyone gives up their natural freedom to gain civil freedom

• individuals place their individual will into the hands of general will

• only way to make rules is through codification

How does the concept of general will legitimize codification?(+example)

• example = France, French Civil Code

• before french revolution = formal concept of law, law was followed because king said so

• after = rosseau argued that for law to be binding it must come from the general will

Cesare Beccaria

“nulla poene sine lege” = no punishment without law

how can statutes be used to settle disputes?

interpretation by judiciary

codifications of civil law examples

• law codes of justinian

• France (1804)

• Germany (1900)

example case interpretation

• Nix v Hedden (USA)

• is tomato classified as fruit or vegetable?

• important to classify the tomato beacuse of the tarriff act of 1883

• botanically speaking tomatoes are fruit

• in common language of people tomatoes are vegetables
  

methods of interpretation (list)

1. Grammatical interpretation

2. Systematic/methodical interpretation

3. Statue-Historical interpretation

4. Legal-Historical interpretation

5. Teleological interpretation

6. Authentic interpretation

grammatical interpretation

• literal meaning of the words in the legislation

• stare decisis = english judges cannot deviate beyond the conventional meaning of words

systematic interpretation

• broad and extensive interpretation

• whether rule fits in the system of law

• assumes that legislation does not contradict itself

• each word has a specific place in legal system

• analogy often used

Statue-Historical interpretation

• what did the legislators have in mind?

• check parliamentary history = to see what legislators said while creating the law

• subjective

Legal historical interpretation

• checking the historical origin of legislation

• objective = historical lineage of a legal idea

Teleological interpretation

• the purpose or aim of the law

authentic interpretation

authoritative explanation by legislator

Intrinsic interpretation

grammatical interpretation

extrinsic interpretation

• depends on external factors

• systematic

• statue historical

• legal historical

• teleological

• authentic

Tension between legislators and interpreters

• Legislators make laws need comprehensive and precise

• Interpreters (judges) must adapt laws to specific circumstances

Epicureanism

• 341 - 270 BC

• natual state of man is horrible

• man overcomes this state by subjecting himself to be ruled by law

• formal concept of law = law only matters when it is passed by proper authority

Stoicism

• law needs to be just and equitable

• material concept of law = only just statutes are laws

Zeno

• creator of “stoa”

• 333 - 262 BC

Marcus Cicero

• Roman supporter of Stoicism

• 106 - 43 BC

Natural law

• law which is inherent and derived from nature and natural principles

• discovered using reasoning

Gaius I

• people are governed by statutes and customs

• they are subject to “perculiar law” and common law of all mankind

Ius civile

• peculiar law = specific to a state

• law of a state (civitas)

ius naturale

natural law

ius gentium

law of mankind (common)

Divine law categories

written = bible

unwritten = natural law

Man-made law categories

ecclesiastical → written = corpus iuris canonici

secular → written = corpus iuris civilis

secular → unwritten = customary law

pros of natural law

can be used to put aside unreasobale or unfair man-mad laws (example: trial by ordeal)

Hugo de Groot

• proved that natural law is secular not divine law

• “if there was no god, there would still be natural law”

17th century what type of law?

• Vernunftsrecht = law of reason

Vernunftsrecht

• legal rules can be discovered through logic

• emphasis on reasoning

• laws should be followed because it is logically necessary, not because of authority or codification

Immanuel Kant

• “dare to think for yourself!”

• argued that individuals should use their own reason to determine what is right

• shifted source of law from external authority to internal human logic

argument against vernunftsrecht

• if reasoning is universal, then why is every professor’s systems of natural law different?

• if professors cannot agree what reason is, then reason is not a solid foundation for law

Ius constitium

• the law as it currently is

• roman law/customary law

Ius constituendum

• the law as it strives to be

• perfect rational law

• vernunftsrecht

why are natural lawyers in favour of codification?

• intellectual economy = innefficent for each individual to always “dare think for themselves” to determine what is right in each situation, hence in codification legislators use reason once to figure out best rules

• Specific code translates universal reason to logical reality = reason is universal but people live in different environments, hence law should be codified to fit the context of the people

• fairness = codifiying laws means everyone knows what is forbidden,

ratio

reason

montisquieu

• in favour of codification

• reason is universal, but people live in different environments

• law should be tailored to the context of the people

• specific code translates universal reason to logical reality

Cesare Beccaria (codification)

• in favour of codification

• codification creates fairness because everyone knows what is forbidden

enlightenment period

• 17th - 18th century

• emphasis on reasoning

example of natural law codified

• French Civil Code (1804)

• Austrian Code (1811)

• Prussian code (attempted)

legal positivism

• 20th century

• law is a set of rules created by the state

• if law is passed using correct procedure it is valid no matter if it is immoral

• return to epicureanism = formal concept of law

turning point in law 20th century

• Nazi Germany

• Nuremberg Trials

• Defence for nazis = they were just following law which justified immoral acts

Gustav Radbruch

• 1878 - 1949

• Radbruch’s formula = conflict between certainty (following written law) and justice (doing what is right)

Radbruch’s formula

1. Rule = generally written law (ius constitium) must be followed even if it is unfair because society needs stability

2. Exception = if a law is so intolerably unjust that it violates core equality of human beings that law is not law

Justice outweights written law

example case redbruchs formula

• wall shooters case

• 1996

example natural law 21st century

1. DCC art. 6:2 = judges can mitigate legal consequences if results of case are unacceptably unreasonable

2. ECHR